Awadhesh Singh vs State Of U P & Another

Judgement reserved

Court No. - 20

Case :- APPLICATION U/S 482 No. - 2596 of 2006 Applicant :- Awadhesh Singh Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Vijay Kumar Singh Counsel for Opposite Party :- Govt. Advocate

Hon'ble Raghvendra Kumar,J.

1. Heard learned counsel for the applicant and the learned A.G.A. for the State of U.P.

2. Jurisdiction of this Court has been invoked under Section 482 Cr.P.C. by the accused applicant Awadesh Singh with the following prayer:-

“It is, therefore, Most Respectfully Prayed that this Hon'ble Court may be pleased to set aside the order dated 20.01.2006 (Annexure-6) summoning the applicant as an accused passed by Addl. Sessions Judge, Court No. 5, Farrukhabad in S.T. No. 392/99, State vs. Vinod and others, otherwise the applicant will suffer irreparable loss.

It is further Prayed that this Hon'ble Court may be pleased to stay the operation of the order dated 20.01.2006 during the pendency of this application passed by Addl. District and Sessions Judge, Court No. 5, Farrukhabad in S.T. no. 392/99, State vs. Vinod and others.”

3. It has been submitted on behalf of the applicant that there is a discrepancy / contradiction in examination-in-chief and the cross examination of the witnesses Jagdish (P.W.-1) and Raghubir Singh (P.W.-2). Further submission is that Investigating Officer has not filed the charge sheet against the accused applicant since he was not present at the time of incident. Further submission is that the informant complainant has participated in cremation and after cremation he had the sufficient opportunity to lodge the F.I.R. but the F.I.R. of the incident of 1 / 2.06.1999 has been lodged with the police after a much delay on 3.6.1999 at 20.30 hours. Learned counsel has placed reliance upon (2014) 3 Supreme Court Cases 92, Hardeep Singh Vs. State of Punjab & others (along with connected matters) & Brijendra Singh & Ors Vs. State of Rajasthan, 2017 (7) SCC 706 and submits that the learned trial Court has passed the order against the aforesaid proposition of Law.

4. The learned A.G.A. has submitted that mere on the score of delay in lodging the F.I.R. the entire F.I.R. cannot be thrown away or discarded out-rightly. The further submission is that the statement of P.W. 1 and 2 reveals the involvement of accused applicant. Further submission is any discrepancy or contradiction appearing in the examination-in-chief and cross-examination is to be scrutinized assessed by the Court at the appropriate stage, the plea of alibi if any can be adjudged only on the basis of evidence.

5. For better appreciation of the controversy the relevant observations contained in Para-9 of the Brijendra Singh and others case cited supra is being extracted here in reproduced below:-

Powers of the Court to proceed under Section 319 Cr.P.C. even against those persons who are not arraigned as accused, cannot be disputed. This provision is meant to achieve the objective that real culprit should not get away unpunished. A Constitution Bench of this Court in Hardeep Singh v. State of Punjab & Ors., (2014) 3 SCC 92, explained the aforesaid purpose behind this provision in the following manner:

“8. The constitutional mandate under Articles 20 and 21 of the Constitution of India provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to society at large to ensure that the guilty does not get away from the clutches of law. For the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under Cr.P.C. indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. It is these ideals as enshrined under the Constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished.

12. Section 319 CrPC springs out of the doctrine judex damnatur cum nocens absolvitur (Judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of Section 319 CrPC.

13. It is the duty of the court to do justice by punishing the real culprit. Where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC?

19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.” It also goes without saying that Section 319 Cr.P.C., which is an enabling provision empowering the Court to take appropriate steps for proceeding against any person, not being an accused, can be exercised at any time after the charge-sheet is filed and before the pronouncement of the judgment, except during the stage of Section 207/208 Cr.P.C., the committal etc., which is only a pre-trial stage intended to put the process into motion.

In Hardeep Singh’s case, the Constitution Bench has also settled the controversy on the issue as to whether the word ‘evidence’ used in Section 319 (1) Cr.P.C. has been used in a comprehensive sense and indicates the evidence collected during investigation or the word ‘evidence’ is limited to the evidence recorded during trial. It is held that it is that material, after cognizance is taken by the Court, that is available to it while making an inquiry into or trying an offence, which the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the Court. The word ‘evidence’ has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. It means that the power to proceed against any person after summoning him can be exercised on the basis of any such material as brought forth before it. At the same time, this Court cautioned that the duty and obligation of the Court becomes more onerous to invoke such powers consciously on such material after evidence has been led during trial. The Court also clarified that ‘evidence’ under Section 319 Cr.P.C. could even be examination-in-chief and the Court is not required to wait till such evidence is tested on cross-examination, as it is the satisfaction of the Court which can be gathered from the reasons recorded by the Court in respect of complicity of some other person(s) not facing trial in the offence.

The moot question, however, is the degree of satisfaction that is required for invoking the powers under Section 319 Cr.P.C. and the related question is as to in what situations this power should be exercised in respect of a person named in the FIR but not charge-sheeted. These two aspects were also specifically dealt with by the Constitution Bench in Hardeep Singh’s case and answered in the following manner:

“95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan [(2014) 3 SCC 321] , held that on the objective satisfaction of the court a person may be “arrested” or “summoned”, as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross- examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “for which such person could be tried together with the accused”. The words used are not “for which such person could be convicted”. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.”

6. In view of the aforesaid proposition of law, the legal portion so crystallizes that while dealing with the application under Section 319 Cr.P.C., the court is not required to test the veracity of statement made by the witness in examination in chief on the touch stone of cross examination. It indicates that even on the basis of examination in chief the application under Section 319 Cr.P.C. can legally be disposed of. So far as the discrepancy or contradiction or an isolated admissions made in cross examination. The trial court is expected to scrutinize the entire evidence and assess and appreciate the evidence in its entirety at the appropriate stage. An isolated admission in the cross examination cannot found the basis for drawing the inference or ignoring the entire statement of the witness. The contradictions are in consistencies appearing in the statement of the witness is required to be considered at the appropriate stage of trial in its entirety. So far as the plea of alibi is concerned, it can be adjudged by the court only on the touch stone of evidence. So far as the plea belated lodging of the FIR is concerned, the accused shall be entitled to take the benefit at the appropriate stage. Law is settled that mere on the pretext of delay, the FIR cannot be thrown away or discarded out rightly. The court has passed a reasoned and speaking order after appreciating the evidence lead before it. The order is speaking one. There appears no illegality in the order which may amount to abuse of process of the court. The order does not appear to have been passed against the spirit of law laid down in the aforesaid rulings cited supra.

7. On the basis of the aforesaid discussions there appear no justification to interfere with the order passed by the learned trial court under assail in this application under 482 Cr.P.C.

8. The application under Section 482 Cr.P.C. is bereft of merit and is accordingly dismissed.

Order Date :- 7.11.2017 Rameez/Vivek Kr.